Musings on Photography

The Photos the Government Compells You to Make, update

Posted in business, ethics by Paul Butzi on April 16, 2008

For those who are interested, a little more information on the Elane/Elaine Huguenin case is now available.

A PDF of the court opinion is available here. There’s lots of detail there, including the email correspondence between Elaine Huguenin and Vanessa Willock and Elaine Huguenin and Ms. Collinsworth. Quite a few assertions about the behavior of Elaine Huguenin are debunked.

Some further insights into the legality of the situation (and the behavior of human rights commisions) can be found in this post and this other post on What I find particularly chilling is this passage:

For instance, the Commission’s rationale isn’t limited to wedding photographers, who some people argued (wrongly, in my view) aren’t really “creative” enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don’t want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here’s the entirety of the Commission’s discussion of the First Amendment issue:
The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: “Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent.” Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That’s a judgment that the First Amendment just categorically doesn’t apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

I have my own opinions of the motivations of Elaine Huguenin, Vanessa Willock, and Ms. Collinsworth. I’m not really interested in public discussion of those views. If you have your own views, great. If not, that’s great, too. I appreciate that other people are highly interested in that aspect of the story, but because the motivations don’t bear on the free speech aspect of this issue, I’m not interested in hosting that particular discussion here. In the interests of not letting the discussion go off on tangents, if you post comments on that aspect of the story I’ll likely delete them.

Likewise, I’m uninterested in discussions of the need for anti-discrimination laws, or in discussion of my own prejudices. Again, those are perhaps interesting discussions but I’m not going to host them here, and I’ll delete comments on those subjects as well.

What I do find interesting is that a) apparently the world at large does not see being a photographer as an expressive activity on a par with being, for example, a playwright or essayist, and b) there are apparently a large number of people who feel that even if one is a ad writer or a playwright that offers to do plays on commission, or whatever, anti-discrimination law trumps your right to free speech.

12 Responses

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  1. Gordon McGregor said, on April 16, 2008 at 10:27 am

    I’m actually interested in reading the court opinion. Your planned link seems to be missing ?

    I have some sympathies with this case on both sides.

  2. Paul Butzi said, on April 16, 2008 at 10:37 am

    Link added. Thanks for pointing that out.

  3. Martin Doonan said, on April 16, 2008 at 10:51 am

    I just read the entire judgement. Crikey – arguments even I could drive a bus through. I think there are merits on both sides to the case but I’ll avoid your exclusion zone…

    As to point a) I think there are 2 aspects. many just don’t see photography as artistic but I’m not sure that was the point here. There is also the aspect that once you become an artist for hire, commercial considerations (including legal duties) over-rule the expressive element. That doesn’t deny that photography is expressive just that when you’re selling the service, you’re acting like a business. I can see some sense in that argument.
    As to point b) seems like some are more equal than others under interpretation (important point that) of anti-discrimination law. reading volokh, I get the impression that that is not (and never was) the intent but has become the reality. I agree with you here – free speech is free for all.

    Another really important point that I noted in the judgement (getting to an earlier comment of mine) is the fact that this loss of free speech was also held against “any person in a public accommodation” which means employees automatically lose their rights on being employed.

  4. Ed Richards said, on April 16, 2008 at 1:32 pm

    > There is also the aspect that once you become an artist for hire, commercial considerations (including legal duties) over-rule the expressive element.

    Exactly. There are still limits to what you have to do, but they have to be uniformly applied. In this case, had the photographer been strictly a wedding photographer and not a general events photographer, there might have been a different result.

    This case is not over – this is just the commission’s ruling. There will be a court review where the state and federal religious liberty act will be considered as a defense. But even if she wins under those acts, it does not get to what bothers you – when you become a commerical artist, do you become a public accomodation? I think the answer is clear – you do, and you have to treat customers in a protected class the same as other customers.

  5. ron said, on April 16, 2008 at 2:42 pm

    These threads have aggravated me for days, and I still haven’t resolved the issue in my head (and probably never will); I have only questions, to your two points:

    (a) You’re applying the term “photographer” as though all apsects of the pure art variety apply to all who create images; would you still claim an artist’s prerogative if instead of a wedding photographer, the service were a lab that specialized in radiological images? An x-ray technician isn’t an artist, but need a wedding photographer be considered one, even if some artistic sensibilities are required?

    That’s perhaps an extreme example, so let’s consider others: school yearbook photographer; mall portrait photographer; marathon/triathlon event photographer. Are all these artists? Do any of them require artistic talents?

    (b) The free-speech issue is whether people should be free to have control over what subjects appear in their work, namely by refusal. Should all professionals in (a) above be free to decline services to, say, people in wheelchairs? Is it any different if you belong to a religion which claims that people in wheelchairs are inferior beings? Should society, through the law, have any say at all in what people the photographers in (a) can refuse service to?

  6. Paul Butzi said, on April 16, 2008 at 3:36 pm

    It seems to me that the issue of expression appears when we have an expectation that we’d get differents as a result of hiring two different people to do the same work.

    So, to take Ron’s examples:
    A) a lab that specializes in radiological images – we might get different results, but what we’re addressing are differences that are objective and quantifiable, and thus interpretations of a level of skill and not expression. We expect that, given two skilled radiologists, the x-rays of our broken wrists will both display the details required for the other medical professionals to get the information needed from them. Anyone who can’t do that is unskilled (and we presume that such services are regulated to exclude unskilled practioners when needed.

    b) School yearbook photographer – to be honest, I don’t see much difference between the ‘classic’ yearbook portraits done by one photographer and another, so I’d be on the ‘not expression’ side. Lately I’ve noticed that seniors often get expressive portraits taken outside of school for this use – such portraits are intended to display something about the person beyond how they look in front of a mottled blue background with two source lighting, and I’d say they’re expressive and thus are expressive speech.

    c) Mall portrait photographer – to the extent that they hew to the ‘standard backdrop’ or ‘pick a pose from the book’ model, I’d say they’re not expressive. To the extent that they’re interpretive of the person rather than reflective of appearance, I’d say they’re expressive. Yousef Karsh is expressive even if his studio is in a strip mall.

    d) marathon event photographer – I’d say that if you take two talented photographers and send them to a marathon and tell them to come back with photos, you’re going to get photos which bear the stamp of each photographer. I’ve photographed cross country runners, and there’s a lot more to cross country that can be expressed photographically than just the iconic finish line shot. There are photos of runners supporting each other, photos of runners and their experience of pain and fortitude, there are photos of coaches huddled with runners, there are photos of runners and their prep routines, painstakingly tying shoelaces and achieving some mental focus.

    But yeah, I get your point. It’s clear that not everyone is going to agree with my answers. Interestingly, my belief in the depth of the artistic expression correlates highly with my feeling that copyright on the result is sensible. I don’t expect there to be copyrights on x-rays, although perhaps there are. I do expect copyright on wedding photos or marathon photos.

    I would observe that this runs counter to my prior claim that I should have the right to not print photos at my discretion. There, the claim is that by printing a photo, I’m making protected speech. I’d accept that viewpoint IF a person printing a photo was absolved of all possibility of being charged with copyright violation, indecency, pornography, etc. If the printer is just mechanically providing a service and has no say in what gets printed and what doesn’t, we can’t reasonably hold the printer responsible for such things UNLESS we are going to enlist all printers as law enforcement officials.

    I guess my point, here, is this: I would think that for something to be a public accomodation, the thing being sold should be fungible in the sense that what one customer gets is more or less what every customer gets. If the restaurant sells pie, and I go in and buy a slice, and Ron goes in and buys a slice, I think we both expect that the two slices will be equivalent in quality and size, and we’d not much care if we went in together, both ordered apple pie, and when the slices arrived at the table, we could switch them and both feel we hadn’t been shorted somehow.

    That’s true of going to the tire store, to the supermarket, to the theatre (where we expect seats equally good, and no discrimination by having, say, ‘Women only’ performances or some such). We expect that at bookstores (no ‘whites only’ titles, thanks).

    But you can’t do that with, say, portraits, or ad campaigns, or with wedding photography. You don’t go to the photographer and say “I’m getting married, please sell me a set of your standard wedding photos from your backstock”, you say “I’m having a wedding, and I’d like you to come and make photographs which not only say ‘wedding’ but say ‘Paul and Paula’s blessed once in a lifetime wedding, with all their beloved friends’. If you feel that isn’t the case, I’m at a loss to see why anyone would prefer one (high priced) wedding photographer over another (low priced) one.

    The price difference alone argues that there’s some expressive element there, it seems to me.

  7. ron said, on April 16, 2008 at 4:25 pm

    It was never my point that wedding photographers aren’t also artists, but to say that they’re not *only* artists.

    I think your point about consistency being a requirement for “public accommodation” is an interesting one. (As an aside, if I go to Mel’s and you go to a more upscale joint, we wouldn’t have the same expectation of equality if our pie pieces were swapped. And we’d expect to pay more at one than the other, which implies that there is also artistry and expression in pies.)

    But more to the point, if a (straight) couple goes to a certain photographer and pays a certain commission for their wedding, and a second (straight) couple pays the same amount to the same photographer, you would expect the second couple to have an experience substantially similar in print quality, attention to detail, overall “artistic experience” to the first. Otherwise you’d probably have a case at least in civil court.

    Now, it is possible that a gay couple could go to the same photographer, pay the same price, and get a similar experience; I take it as a given that many wedding photographers are open to, and can produce equivalent work for, any kind of ceremony.

    Does this mean that wedding/ceremony photography is a public accommodation because such consistency is possible? On whose expectation of this consistency is your definition incumbent? The couple’s? The photographer’s? The law’s? Is it reasonable for there to be an expectation that as a professional, the photographer might be able to set aside personal views and still do a good job? Which of these expectations is the existence of an expressive element allowed to override?

  8. Paul Butzi said, on April 16, 2008 at 6:34 pm

    I take it as a given that many wedding photographers are open to, and can produce equivalent work for, any kind of ceremony.

    I’m not so sure. Suppose you’re an experienced wedding photographer but you’ve never done a (insert rare ethnicity with different wedding customs) wedding. Can you do a great job without understanding the symbolic significance of what you’re photographing? You might be able to make photographs, but as you point out, if the quality is not up to par, you’re open to a lawsuit. How about a wedding ceremony that involves rituals you find repugnant or which violate your personal mores? Again, I expect that some people could set that aside, and some could not.

    It seems to me that when you get into the realm where the service offered is *necessarily* highly customized to each individual client, you’ve left the realm of ‘public accomodation’ and entered into the realm where what’s being purchased is the statement of the individual business. That’s why I wonder about freedom of speech and freedom to NOT make specific statements.

    It would appear from this decision, though, that at least some HRCs disagree. I suppose it will all get sorted out in time.

    An interesting way to look at it would be to view the couple hiring the photographer as the employer and the photographer as the employee. In that situation, the employer MUST make reasonable accommodation of the photographer’s religious beliefs. This is essentially the same balancing act but with the shoe on the other foot.

    We might expect that if the balance were fair it would come to rest in the same place both times. That doesn’t seem to be the case here.

    I am still very much of two minds about all this.

  9. Bryan Willman said, on April 16, 2008 at 10:49 pm

    There’s a funny “backfire” angle on this, hard to write out well.

    In many of the areas that discrimination is to be combated, there is an “clear” standard of quality. So to “deliberately do a poor job” and “just reaching the limits of skill” could probably be told apart. Especially for any physical good made before the customer is known (a pie or a house), or any good made without regard to the customer (a pizza cooked in a standard oven), you’d have to really screw up (or really discriminate) to offer sub-standard service.

    But here, the service is by nature directly related to the people and the ceremony they are planning to conduct. Photos of a gay commitment ceremony will be different from photos of catholic wedding which will be different from photos of a jewish wedding. (I’ve photographed the last two and they were way way different, I’m sure a commitment ceremony, straight or gay, would be different yet again.)

    So, if gay couple G forces devote anti-gay photographer P to photograph their commitment ceremony, (or P takes the job out of fear of an HRC ruling), and P does a really bad job, now what? Suppose the issue is so upsetting to P that it makes P ill, and causes P to produce the worst photos of their life, for G’s once in a lifetime event? Who is served by that?

    In short, forcing a ‘creative’ to do something will not necessarily lead to a useful result. By contrast forcing you to sell your house for the same price to anybody who will pay will yield a house in their possession. Same for a piece of pie.

    But on the other hand, if a Dr. is made so ill by contact with (anybody, white people, gay people, black people, whatever) that it makes said Dr. incompetent when treating that group, do we want to allow that? Especially if it’s an ER Dr.? (But the medical professions are a kind of licensed monopoly, does that mean we can have different expectations of them?)

    On yet another hand, lawyers are apparently expected to take on any case, and representing “scum” or parties in disputes who have clearly done the wrong thing is part of the job. Should we have the same expectations of photographers, artists, etc? Is law somehow less creative that photography?

    Examples cited elsewhere fail to note the “race, sex, orientation, religion” part of these laws – so it’s hard to argue a vegan photogapher would be required to do photo shoots for a butcher, unless they made exceptions for christian butchers but not jewish butchers.

    Elane photography apparently tried to claim “we do weddings, not other coupling crememonies”. Implying that if a gay man had decided to mary a gay woman in some traditional ceremony, they would have photographed it. Does this distinction matter?

    How much of this case hinges on the event being directly intertwined with the orientation of the plaintiffs? That is, if plaintiffs had asked Elane to photograph a desert marathon, and Elane had said “sorry, we don’t do sports”, is it at all plausbile that would have led to such an HRC result?

  10. Bryan Willman said, on April 16, 2008 at 11:00 pm

    The Employment Angle.

    In general, while employeers and providers of accomodation cannot discriminate, employees and customers can. (So the Canibal Deli has to serve me, but I could for whatever reason shun them. A company founded by Militant Foofarians would have to consider me for employment, but I could refuse to apply there.)

    So the question of whether a photographer, writer, etc. is a business (offering an accomdation) or a freelance employee (seeking employment) really changes the discussion.

    Which makes me wonder, what if Elane Photo LLC had said “Ok, let’s see who we can assign” and then came back and said “all of our employees have refused on religious grounds. would you like to pay us to hire somebody else to do it for you?”

  11. Martin Doonan said, on April 17, 2008 at 12:19 am

    Bryan – 2 interesting points there. To the first, it seems that the NMHRA actually includes employees (as I pointed out) with the provision for “any person in a public accommodation” (see Findings of Law points 13 & 16). The inference is that you give up rights of free speech as an employee – which I personally think is outrageous.
    The other idea on “OK, let’s see who we can assign” would have been relatively easy to argue here, I think. Elane Photographic actually gave testimony that they hire others (Findings of Fact, point 3).
    I would be sympathetic to a ruling that said, OK, Elane Photo needs to provide the service. If some of the employees aren’t willing, they should be hiring in someone who is. The expectation is then on the couple having the ceremony to accept the given photographer.
    It’s about time that Human Rights Commissions (anywhere) got back into the business of balanced consideration of rights. As it is, HRCs should really be called Protected Minorities Discrimination Boards so it would be clear that the rest of us don’t have rights within their bailiwick.
    While I’m on this track – would there be a case for a counter-claim against the NMHRC, as a “public accommodation”, for discrimination against Elaine H? Or do Gov’t agencies not have to conform to their own standards anymore?

  12. Ken Hagler said, on April 18, 2008 at 7:56 pm

    Government agencies never have to conform to their own standards unless they happen to feel like it. Try joining the military and telling your CO that you’re having a commitment ceremony with your (same sex) loved one, and see just how much good a “human rights commission” does you.

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